Depositions before people’s tribunal in Odisha highlight government failure to implement tribal self-rule in the scheduled areas

A recent deposition on issues faced by people in the scheduled areas in different districts of Odisha before a people’s tribunal at Bhubaneshwar in Odisha before a jury consisting of Bipin Jojo, Marinam Kujur, Chitta Baral, Dayamani Barla, Karunakar Mishra, advocate Sujata Jena, BD Sharma, Arvind Behera and SK Subramaniam highlighted oppression faced by members of the tribal community in the state. While the issues dealt with relate to what is happening in Odisha, they have wider implication for states with large tribal population. Excerpts from the Interim Report, prepared on the basis of deposition made before the tribunal:

Deposition by Bipin Lakra: Illegal transfer of community land to a private company at village Bagudihali, Tehsil Rajgangpur, District Sundergarh.

The jury said, it is a fit case for the intervention by the governor under the 5th schedule of the constitution which authorizes the governor to take remedial action deemed proper in such cases of land disputes in scheduled areas. However, though petitioned before the governor, no response has been received from his end. Bipin Lakra, a vocal protestor among the villagers, was offered a bribe of Rs 15 lakh by the company in lieu of the withdrawal of the complaint against the company. It was suggested by the jury to tag this bribery issue to the main complaint on illegal land acquisition by the private company, before the governor.

Deposition by Daridhara Nayak: Burning of huts of Paudi Bhuyians, a vulnerable tribal group, by the forest department officials in the new settlement at billage Kiri, district Sundergarh.

The jury said, the secretary, state forest department was approached after the incident, but the only action that was taken as a consequence was the transfer of the DFO. The other officials who were directly responsible for setting fire to their huts continued to enjoy their post as before.

Deposition by Ganeshwar Patra of Mali Khubdi village, Block Lamptaput, District Koraput: Limestone/china clay mined by a private contractor licensed by the Tehsildar without the approval of Gram Sabha/Gram Panchayat, required by the Panchayats (Extension to Scheduled Areas) (PESA) Act,1996.

The jury spoke strongly against the ‘prospective licensing’ provided to the private contractor in this case. The license had been used in an illegal manner to mine a large amount of china clay amounting to nearly 5,000 tonnes which had been carried away in 300 trucks. The Gram Sabha was not consulted on large scale quarrying, which was a clear violation of the PESA Act. The illegality being supported by the tehsildar suggested the complicity of state actors. This issue of the lack of implementation of the PESA Act has to be taken up at the highest level i.e. The Ministry of tribal affairs. The control over resources, finances and decisions has been shifted to the Collector and the idea of local self-governance by the people has been pushed to the sidelines.

Deposition by widows and family members of the deceased Ghasiram Bagsingh, Ayub Padra and Syamason Majhi of Bhaliaguda forest area, district Kandhamal: Deployment of armed police in the scheduled area without consent from the Gram Sabha and violation of section 4(d) of the PESA Act.

The jury condemned the police atrocities on the deceased men and their families in the strongest words and opined that the culprits should be taken to task immediately. They recognized the crucial work being done by the deceased men as whistleblowers in a PDS corruption scandal and said that their honest efforts towards better governance should not brought them to such an end. The case revealed the structural nexus between the police as well as the Maoists and many corrupt elements in society. The jury said that such an alignment is being revealed in many cases and should be dealt with utmost seriousness. The policy recommendation was to constitute a tribal cell at the earliest which would look into such police atrocities and provide relief within a stipulated time period. This cell could be opened in the office of the home department or the tribal ministry.

Deposition by Pravasini Pradhan, Shashigada village, block Daringibadi, district Kandhamal: State encouragement to opening of new country liquor shops by amending the Bihar-Odisha excise Act.

The jury opined that free legal assistance should be provided to the petitioners in their battle to fight illicit liquor. Since the approval of the Gram sabha had not been taken before the opening of new liquor stores, it is in direct violation of the PESA Act. The jury suggested, the villagers fighting the menace of alcoholism should not wait for the government to take any radical steps to move away from their stand. They should instead convene another Gram Sabha and try to mobilize public support of their cause.

Deposition by Jual Sabar of Ghanatari, district Rayagada: Lack of provision for teaching and learning in one’s mother tongue in scheduled areas of Odisha.

The jury studied the case and said that it is the elementary right of children to be educated in their mother tongue and this denial in case of Soura children is in violation Section 29 (2) (F) of right to education (RTE) Act, 2009. This is also in violation of Section 4(D) of the PESA Act. The jury said that since the population of the community on Odisha itself is above 10 lakh, they should now try to mobilize support from other Soura speaking states like Andhra Pradesh, Assam, Jharkhand and West Bengal. This would improve their bargaining power. The process for recognition is a long and arduous process and would involve a lot of advocacy efforts. Tribal linguistic experts from across the country should be incorporated into a functioning panel and could work under the aegis of the tribal ministry.

Deposition by Nirmala Kanti Oraon of Silpunji village, block Gurundia Block, district Sundergarh: Arbitrary arrest of male members of the village under false charges of Maoist activities and wrongful detention for more than two years.

The jury condemned the excesses committed by the police in this case and said that there can be no excuse of targeting innocent families. They said that the primary objective now should be to demand adequate compensation for the families who had been ostracized for more than two years through no fault of theirs. Penal action should be initiated against the police officials who were involved in this act and they should be taken to task immediately.

Deposition by Ana Bilung of Mirigmunda village, district Sundergarh: Lack of effective penal recourse for victims of human trafficking in schedules areas of Odisha.

The jury recognized that the case is extremely old and the process to obtain justice for both the victims would be a cumbersome process. But the first step would be to acknowledge that there are still spaces available for the petitioner to seek redressal and encourage her to keep the fight on. The Child Welfare Committee and the Women’s Commission should be involved in the issue. The collaboration between the police at Sundergarh and likeminded agencies in Delhi is still very flimsy in this case and efforts should be made to strengthen collaborative efforts to obtain justice. Since the police has been informed about the grievance at the earliest and have not yet been able to deliver results, the victim should now take the legal recourse. A Habeas Corpus writ should be filed with the High Court at the earliest.

Deposition by Ramesh Chandra Kadraka, Jalainidhi village, district Rayagada: Illegal Tribal land acquisition by non-tribal in scheduled areas of Odisha.

The jury identified many cases of land grab by non-tribals in scheduled areas where the tribals have to suffer due to non-possession of land ownership records. The jury said that the petitioner has to make some efforts to gain access to land records through the land registrar’s office. But, even in the absence of land records, one could approach the district collector’s office for necessary action. The PESA laws in Odisha in terms of tribal land grab is much more favourable towards the tribals, than that in other states of India.

Deposition Ani Santa of village Gadiaguda, block Dashmantapur, district Koraput: Lack of control of the Gram Sabha over money-lending transactions.

The jury recognized that money-lending activity was not done with the consent with the Gram Sabha which is the mandate in accordance with the PESA Act. They also suggested that the victim should take the legal recourse and not only file an FIR for forgery but an also approach the high court.

Deposition by Samra Challan of village Litiput, block Lamtaput, district Koraput: Encounter killing of an innocent tribal and deployment of armed police in the scheduled areas of Odisha.

The jury condemned the brutal murder by the armed forces and questioned their very presence in scheduled areas. They said that the policy to tackle Naxalism which has been taken up has failed and the state has lost the moral authority to continue with it. The entire process should be rethought and reassessed. The rationale for employing armed forces in scheduled areas is no longer justified as it is only innocent tribals who bear the brunt of their atrocities. Paramilitary forces being used without the consent of the people is in direct violation of the 2007 UN Human Rights Declaration, Article 13. The offending paramilitary group should be taken to task for gruesome murder.

Deposition by Damador Budha of village Khurapali, district Sundergarh: Arbitrary acquisition of land and violation of terms of agreement decided on during Gram Sabha, by a private company.

The jury felt, the land mafia, brokers and the police forces, used by the government for forcible, illegal and fraudulent land acquisition by organising fake Gram Sabha meetings should be stopped and all the previous “llegal decisions” taken by such “fake” Gram Sabhas should be reviewed and rectified immediately

Deposition by Chittaranjan of village Pandapada, district Keonjhar: Illegal tribal land acquisition by non-tribals in scheduled areas of Odisha.

The jury insisted that the government just stop kinds of displacement and restore all tribal lands alienated from them by fraudulent means and help them to restore their life of dignity.

Deposition by Thomas Toppo village Rourkela, district Sundergarh: Tribal Land acquisition in the name of development and then transfer of excess land to non-tribals.

The jury pointed out that the Forest Rights Act (FRA) stipulates that if land acquired for public institutions remain unused for more than five years then it has to be returned to its rightful owners. The jury suggested that the demand for compensation could be increased under the new land acquisition Act.

Deposition by Geetanjali and Samuel Mankadiya of village Sukinda, district Jajpur: Primitive tribal groups in Odisha, especially Mankadias, do not possess any material assets. Their deplorable educational and health standards was deplorable, and there was absence of any kind if government intervention.

The jury recommended that the state welfare department should ensure social, economic, cultural, educational, health and other needs of the particularly vulnerable tribal groups (PVTGs).

Deposition by Ganesh Mundari of Bagudibadi basti, Chend Township, Rourkela, district Sundergarh: Police atrocities on tribals over issues of illegal land acquisition.

The jury recommended that all tribal lands alienated from them by fraudulent means should be restored and help needs to be provided to them to restore their life of dignity. The Planning Commission Report on “Development Challenges in Extremist Affected Areas” (2008) has recommended that police reforms should receive priority to make them more sensitive and accountable to the people. The report must be taken seriously and its recommendations implemented. The Recommendations of the Second Administrative Reforms Commission on Public Order (2007), concerning the police, must be implemented forthwith.

General recommendations by the jury:

The Orisha government should move to repeal the provisions of the Odisha Gram Panchayat (OGP) Act, 1964, Odisha Panchayat Samiti Act, 1959, and Zila Parishad Act, 1991, which are not in consonance with the 73rd Amendment the Constitution and the PESA Act, 1996 to empower Gram Sabhas to take decisions about minor forest produce, minor minerals, liquor policy, and other related aspects of the scheduled areas. These three panchayat laws of Odisha need to be consolidated into a single piece of legislation as in other states. While amending the Odisha panchayat laws in conformity with the central PESA Act, reasonable steps should be taken not to dilute the pre-eminent position of Gram Sabha.

The land mafia, brokers and the police forces, used by the government for forcible, illegal and fraudulent land acquisition by organising fake gram sabha meetings should be stopped and all the previous ‘illegal decisions’taken by such‘fake’gram sabhas should be reviewed and rectified immediately.

Special legislation as recommended by the Bhuria Committee in its second report for extension of PESA-like provisions to urban and semi-urban areas for which a Bill has been introduced in the Rajya Sabha in 2001, needs to be passed by Parliament. Until then no municipal laws should be declared applicable in the scheduled areas.

Provision in the OGP Act 1964 in terms of Odiya being considered as a spoken language for the electoral processes should be deleted for the tribal people.

There should be a ban on liquor vending in the Scheduled Areas. Let the prohibition of the liquor be entrusted to Gram Sabha as provided in the PESA as well as the order of the central government in 1974.

Stern action should be taken against the police and security forces responsible for atrocities on the innocent tribals and also for killing them in encounters alleging tribals to be Maoists. Just and full compensation should be given for the killing of the innocent tribals and ensure jobs for their kin. The cases of arrested tribals under the suspicion being Maoists must be reviewed and they must be released. Special cell should be opened in tribal welfare department in Odisha to monitor all such cases in Scheduled Areas and the report of the cell should be placed on the floor of the Assembly as well as in public domain.

The Planning Commission Report on Development Challenges in Extremist-Affected Areas, 2008 has recommended that police reforms should receive priority to make them more sensitive and accountable to the people. The report must be taken seriously and its recommendations implemented.

The Recommendations of the Second Administrative Reforms Commission on Public Order (2007), concerning the police, must be implemented forthwith.

Tribal cell must be constituted in the governor’s office to help him monitor the tribals’ issues and problems on a day-today basis and ensure objective and impartial function of the administration at all levels in respect of tribal communities.

The Fifth Schedule of the Constitution is regarded as the ‘Constitution within the Constitution’. It provides that governors of states must write an Annual report to the President of India on the administration of the tribal areas and for the President to give directions on the subject. However, no such reports and directions have been issued in the last 60 or more years.

Stern action should be taken against the traffickers of tribal girls to cities. Immediate action should be taken to bring back all the tribal girls who have been trafficked, ensure their safety in the place of destination and make a roadmap for their employment in their place of origin so that they and their parents do not fall prey to the allurements of making quick money in cities.

All kinds of displacements should be stopped. All tribal lands alienated from them by fraudulent means should be restored, the tribals should be helped to restore their life of dignity.

The ministries and departments concerned should facilitate the use of mother tongue in primary education. Support is required to make syllabus in local languages. The examples of some organisations in Assam and Jharkhand can be followed in this regard.

There should be a strong functioning of Tribal Advisory Council (TAC) of the state, which has become defunct.

The state welfare department should ensure social, economic, cultural, educational, health and other needs of the particularly vulnerable tribal groups (PVTGs).

The government must ensure the use of funds allocated for tribal sub-plan (TSP) only for tribal development and prevent their diversion to non-tribal activities of the government. It should make central as well as state legislations for a serious implementation of TSP for tribal development.

All the forest villages should be given the status of Revenue villages with immediate effect.

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